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Flashcards in Head 19: Tenements Deck (35):

What is meant by a 'tenement'?

Tenement includes modern blocks of flats and conversions (i.e. houses divided into flats).


How are tenements defined in T(S)A 2004?

For the purposes of T(S)A 2004 this is a ‘building or a part of a building which comprises two related flats at least two of which (a) are, or are designed to be, in separate ownership; and (b) are divided from each other horizontally (s. 26(1))

Horizontal division is crucial. If properties are divided vertically that is a terrace, not a tenement.


What are the default rules of tenement ownership?

However the rules of ownership in the Act are simply default rules - they are rules which apply only if the title deeds don't provide otherwise (s 1). So an express term in the title will prevail over T(S)A 2004, s1(1).

These default rules are often varied to some extent in the title deeds. [Thus one of the difficulties of this area of the law in practice is that you can't simply rely on what the Act says since often people will have opted out of the default rules and varied them.]


What is the Tenement Management Scheme?

It is part of the legislation which contains contains a set of model rules governing decision making and liability for costs relating to the building. As a default rule, this is normally subject to any real burdens?


What is the starting rule for tenements?

The starting point is that each person owns his flat.

Under s 2 there are special rules for the top and bottom flats.


How does T(S)A 2004 s29(1) define 'flat'?

Defines ‘flat’ as including any premises. these do not require to be limited to residential use or confined to one floor. so the legislation applies to tenements in which some or all of the units are commercial.


How does T(S)A define bottom flat?

The bottom flat
⁃ "The bottom flat extends to and includes the solum[ This is defined in s 29 as "the ground on which a building is erected". This is the ground under the tenement building.

Thus all the flats above the bottom flat effectively levitate since they don't own any land.] under that flat" - s 2(4)
⁃ Under s 2(6) "Where a sector includes the solum (or any part of it) the sector shall also include, subject to subsection (7) below, the airspace above the tenement building[ Important point. So the owner of the ground floor flat owned down to the center of the earth and all the space above the tenement building.] and directly over the solum (or part)."


What do the middle flats own?

They don't own the roof of the ground - they simply own their flat.]


What are boundaries?

Section 2 sets out the boundaries as between flats and other sectors (defined in s 29(1) as any three-dimensional space).


What is a sector?

A ‘sector’ is defined to mean (a) a flat (b) any close or lift or (c) any other three dimensional space (s29(1)).


What is the basic rule regarding boundaries?

The basic rule is that the boundary is the mid-point ('median of the structure that separates them') (s 2(1)); but a thing which wholly or mainly serves one sector (eg a door) is wholly part of that sector (s 2(2)).
[So the boundary of a wall between two flats is the midpoint of the wall. And the boundary of the floor between flats is the mid point of the joists (the supporting beams) between the flats.]

- External walls are owned exclusively by the sector in question (s 2(1)). This means that the front wall of the building is owned in sections by the owners of the front-facing flats.
⁃ Section 2(3)-(5) and (7) gives important rules for top flats, bottom flats, and closes.


What are pertinents?

Each flat has as a pertinent.

The most important things here are:

1. closes
2. lifts
3. gardens] (s 3)

This is an additional right which attaches to your principle right of ownership of your flat. If you transfer ownership of the flat then you transfer the ownership of the pertinent too.

The main pertinent rights are the lift and close.

*These will be covered in later weeks*] (close or common stair) any part that serves it; and if more than one flat is served, the part is owned as common property (s 3(4)).


What are the rules concerning closes and lifts?

This general rule is stated separately for closes (defined in s 29(1) as 'a connected passage, stairs and landings within a tenement building which together constitute a common access to two or more of the flats') and for lifts in s 3(1), (2) [but a main door flat which takes entry directly from the street is excluded from this.]
⁃ Even if you own the ground floor flat then you have a right in common property of the close including the staircase. But under s 3(2) if a close or a lift does not afford a means of access to a flat then there shall not attach to that flat (e.g. A ground floor property), as a pertinent, a right of common property in the close or, as the case may be, lift (this means that ground floor flats don't own lifts and 'main door flats' don't own the close.)


What are the general rules regarding gardens?

Under s 3(3) the default rule is that the lowest flats in the tenement own the garden and they own it in sections - they own the bit nearest their flat. However, it is usual that back gardens will be varied in title deeds to be common property.

There is an exception for paths, outside stairs or other means of access which are covered by a more general rule, namely that a part of a building serving a flat is a pertinent of it [s3(4)].

[NB not related to tenements but there is a servitude convening hanging clothes in a garden!]


Who owns things like the flue, rhone, pipes, cables??

The Act has a very general provision in s 3(4) which states that if the thing in question only serves one flat then it belongs to that flat. If it serves two or more flats then it belongs to all of those flats as common property.
⁃ [So in relation to pipes, the parts of a pipe which only serve one flat will only be owned by the owners of that flat, but once this part joins the main pipe at a juncture, the pipe from there onwards will be common property.][ Need to look this up in Gretton and Steven chapter 15]
- NB it does not matter if one section of the thing serves one flat and another section another, e.g. An entryphone system is regarded as a single entity even though it has separate wires serving separate flats. [Because s3(4) confers a right of common property in and in the whole of the part]


What are the size of the pro indiviso shares?

Under s 3(5) the size of pro indiviso shares is normally equal except with chimney stacks where the ratio is worked out by the number of flues you have.


What is the Tenement Management Scheme?

The maintenance scheme is not tied to ownership - it cuts across ownership.**

The principle is that every tenement must have a 'management scheme'. The Act provides a model management scheme known as the Tenement Management Scheme ('TMS'), set out in the sch 1 to the Act. This applies to all tenements unless the tenement has opted in to the (optional) Development Management Scheme (DMS)[ It is rare for tenements to opt in.]. Virtually all tenements are governed by the TMS (but see below - it is only the default rules). However they may be disabled by particular real burdens governing the matter in question (T(S)A s 4)

Also the TMS is just a set of default rules.*** so that if title deeds have their own maintenance provisions (in the form of real burdens) then these will trump the TMS.


What is Rule 1 of the TMS?

1) TMS applies to scheme property (rule 1)
⁃ The TMS doesn't apply to the whole building - it only applies to 'scheme property.' Scheme property is defined in rule 1.2 as being:
⁃ any part of the tenement that is common property of 2 or more owners (such as the close_ (r.1.2(a))
⁃ any part of the tenement (not falling under para (a) above) the maintenance of which is the responsibility of more than one owner by virtue of a real burden is also scheme property (r.1.2(b))
⁃ Insofar as not being already covered by para (a) or (b), r.1.2(c) provides a list of scheme property including: the ground on which it is build, its foundations, its external walls, its roof, any loading bearing wall etc. These parts do not need to be co-owned (in terms of the title deeds) to be scheme property e.g. A roof is nonetheless scheme property even if the top floor flat owns it.
⁃ Under r.1.3 there are a number of exceptions to scheme property which include: an extension forming part of only one flat, doors, windows, skylights, vents, chimney stacks, chimney flue's.[ There are special rules for chimney stacks and flue's and you need to master them yourself!!!]


What is Rule 2 of the TMS?

2) Scheme decisions (rule 2)
⁃ By r 2.5 scheme decisions are made by simple majority although all owners must be consulted. Each flat has one vote (r.2.2) However where a flat is not liable for the maintenance costs i.e. for the close then they do not get a vote.
- Where a meeting is deemed best the owners must have 48 hours notice, and what is required to take a scheme decision is the agreement of a majority of the owners and not just those who attend the meeting.
- Of course real burned might impose a higher threshold which will then apply (r.3.1(b)).

⁃ A decision can be taken with or without a meeting. Once taken the decision must be notified to everyone. It is frozen for 28 days after last notification to allow a challenge by a disaffected owner in the sheriff court and the sheriff can annul if it is deemed not in the best interests of the owners (s 5) (but urgent work can go ahead at once). Assuming no challenge, a decision binds all the owners and their successors and can be founded on by any owner (r 8).


What is Rule 3 of the TMS?

3) What matters can a scheme decision be taken on?
⁃ Rule 3 lists the matters on which a scheme decision can be taken. The main topics are found in r 3.1 and r 3.2 and include decisions to:
⁃ Carry out maintenance which includes “repairs and replacement, cleaning, painting and other routine works, gardening, the day to day running of a tenement and the reinstatement of part of the tenement building; but does not include demolition, alteration or improvement unless reasonably incidental to the maintenance’. [r.1.5)
⁃ To arrange for inspection of scheme property to determine whether maintenance is necessary
⁃ To appoint someone to manage the tenement
⁃ To dismiss a manager
⁃ To delegate to a manger powers e.g. to carry out maintenance etc
⁃ To have a common insurance policy
⁃ To install a system enabling entry to the tenement[ This is the 'entry phone'. The reason such circuitous language has been used is that telecommunications is reserved to the westminster parliament.]

⁃ There are supplementary rules about maintenance under rule 3.2(a) and (b) to instruct the work or to appoint an owner or a firm to manager it
- Importantly a scheme decision can require all the owners to deposit their estimated share of the cost of the work in advance in an interest-bearing bank or building society account r.3.2(c).

⁃ For property owned in common, scheme decisions replace the common law rule which allows any co-owner to recover the cost of necessary repairs (s 16).


What is Rule 4 of the TMS?

4) Who pays?[ Make sure to read rule 4 so that you actually know how it works.]
⁃ Rule 4 imposes liability for scheme costs ie costs arising out of scheme decisions plus certain other costs - listed in rule 4.1.

NB a real burden determining how scheme costs are shared between flats ONLY applies if it covers the WHOLE bill, I.e. It is in the title deeds of each flat.

The general rule is that costs are shared equally. But in respect of maintenance costs (r 4.2[ Most important provision.]) –
⁃(1) if the property being maintained is owned in common by the owners of two or more flats, liability is by share of ownership[ So if it is common property then everybody pays a share of the cost corresponding to the size of their share in the common property (which will normally be an equal share).]; and
⁃(2) if the property is not owned in common, and the floor area of the largest flat is more than x 1.5 that of the smallest, liability is by floor area.[ james, 09/03/2014 11:58] If the floor area of the largest flat is not more than x 1.5 the area of the smallest then liability is shared equally among the flats.

⁃ Rule 4.3 has a special rule for the roof over the close. If the title deeds are silent, then liability is not based on the fact that it is common property. Rather, it is either to be equal or calculated by means of floor area if (2) applies.


What happens if someone moves?

This depends on what stage the work is at.

NB the liability of an owner continues if they move since liability for costs arise at the time when the relevant scheme decision is made (s.11 T(S)A)
- Where work has been instructed but not carried out, the incoming owner is jointly and severally liable with the outgoing owner for the cost (s.12(1)) the former has a right to be reimbursed against the latter however (s12(2)).
- Where work has been complete yet not paid for the incoming owner has no liability unless a ‘notice of potential liability for costs’ has been registered against the title (s12(3))


What happens in emergencies (Rule 7)?

⁃ If work needs to be carried out in an emergency (and hence before a scheme decision can be taken), any owner can instruct it and recover the costs from the others as if there had been a scheme decision (r 7).
- The definition of an emergency is narrow. It essentially means that a repair is so urgent that it can't wait for a scheme decision (a) to prevent damage to any part of the tenement, or (b) in the interests of health and safety (r.7.3). (Since scheme decisions are so easy under the TMS it would have to be something pretty serious for this to apply).


What is the alternative to the rules under the TMS?

Since the TMS can sometimes be inadequate (since it functions by democracy) there is an alternative way to get repairs carried out. This is under s 8, 9 and 10 of the Act. These are mandatory provisions and reproduce the common law rules. These provisions are directed at parts of the building which are needed which are so fundamental that they are needed either for shelter or for support.


What are the mandatory provisions under s8?

Owners of any part of a building which provides support or shelter must maintain that part, and can be made to do so by any other owner (s 8(1)).

For such crucial repairs, therefore, it is not necessary that a majority agree. Assuming the part being repaired is scheme property (or property to be maintained under the titles or the DMS), the owner can recover a share of the cost from the other owners as if a scheme decision has been taken (s 10). Obligation lasts only for as long as tenement sensibly remains as a going concern.

The duty to maintain exists only if it is reasonable, having regard to all the circumstances including the age and condition of the building and cost (s 8(2)).


What if you are the owner of these parts but don't carry out repairs?

If you do nothing and then support/shelter fails and the properties are injured then you can be liable in delict (I think it states this under s 8). See Thomson v St Cuthbert's Cooperative Association Ltd 1958 (negligence) and Kennedy v Glenbelle Ltd 1996 (nuisance). **NB liability is not strict - negligence must be proved**


What does section 8 state?

Section 9 is a prohibitive section which states that no owner or occupier may endanger (i) support or shelter or (ii) natural light.

Taken together, these provisions imitate, and replace, the obligations previously imposed by the (common law) doctrine of common interest (s 7).


What does section 8 state?

Section 9 is a prohibitive section which states that no owner or occupier may endanger (i) support or shelter or (ii) natural light.


What are statutory repair notices and when are they used?

Where owners don't agree to get repairs carried out and nothing is done, the local authorities have extensive statutory powers to compel the owners to carry out repairs.

Various statutes empower local authorities to require that maintenance and repairs be carried out (i.e. they can serve a notice on the building requiring the owners to carry out repairs), failing which the authority can effect the repair itself and recover the cost. See in particular:
⁃ defective building notices and dangerous building notices: Building (Scotland) Act 2003 ss 28-30
⁃ work notices: Housing (Scotland) Act 2006 s 30
⁃ maintenance orders and maintenance plans: Housing (Scotland) Act 2006 ss 42-51


What is the procedure of issuing a statutory repair notice?

The procedure is that the local authority, if satisfied that work is needed, serves a ‘statutory notice’ on the owners (e.g. Dangerous building notices). These require the owners to carry out remedial work within a certain period. Such a notice will appear on the ‘property enquiry’ certificate which a prospective buyer always requests from the local authority, and so makes the flat harder to sell until something is done. The LA can carry out the work themselves and bill the owners or bill through a ‘scheme cost’.

LA's are increasingly reluctant to use these powers. They will only tend to do so now if something is dangerous.


What are the provisions under s17 and s18?

Owners are allowed reasonable access for repairs, maintenance, inspection etc over the property of other owners (s 17(1)). Reasonable notice must be given of the desire to take access expect if there is a need to carry out urgent maintenance.

Flats must be insured for reinstatement value against the prescribed risks (s 18). A common policy of insurance is required if (i) a majority of owners so decide under TMS r 3.1(e) or (ii) real burdens so provide. A common policy is cheaper. Otherwise separate policies may be used.
⁃ There is a right to enforce the insurance obligation against your neighbour and a right to ask your neighbour to see their insurance policy.


What are the provisions under s17 and s18?

Owners are allowed reasonable access for repairs, maintenance, inspection etc over the property of other owners (s 17(1)). Reasonable notice must be given of the desire to take access expect if there is a need to carry out urgent maintenance.

Flats must be insured for reinstatement value against the prescribed risks (s 18).


When is insurance in tenements required?

A common policy of insurance is required if (i) a majority of owners so decide under TMS r 3.1(e) or (ii) real burdens so provide. A common policy is cheaper. Otherwise separate policies may be used.

There is a right to enforce the insurance obligation against your neighbour and a right to ask your neighbour to see their insurance policy.


What happens when a tenement is demolished?

If a tenement is demolished, the cost is shared equally (or by floor area if largest flat is more than x 1.5 the size of the smallest) (s 21).

But ownership is unaffected (s 20).

Except where there is an agreement or obligation (typically by real burden) to rebuild, no rebuilding is allowed and any one owner can insist on the sale of the site, with the proceeds being divided equally (or by floor area) (s 22).


What happens when a tenement is abandoned?

Sale is allowed (s 23).